If an actor, such as a health care provider, operates in more than one state, is it consistent with the information blocking regulations for the health care provider to implement practices to uniformly follow the state law that is the most privacy protective (more restrictive) across all the other states in which it operates?

Yes, if the actor satisfies the requirements of the information blocking regulations, such as the Precondition Not Satisfied sub-exception of the Privacy Exception (45 CFR 171.202(b)).** For purposes of the information blocking regulations, health care providers and other information blocking actors operating under multiple state laws, or state and tribal laws, with inconsistent legal requirements for EHI disclosures may choose to adopt uniform policies and procedures so that the actor only makes disclosures of EHI that meet the requirements of the state law providing the most protection to individuals’ privacy (45 CFR 171.202(b)).** Essentially, the Precondition Not Satisfied sub-exception establishes conditions under which an actor may adopt policies to satisfy state laws with more restrictive preconditions and apply those policies in all the jurisdictions in which they operate. 

To illustrate, consider a scenario in which an actor operates in two states, “State A” and “State B.” State A forbids disclosure of certain EHI, such as EHI specific to reproductive health care, to another health care provider, who is also currently treating the individual, without first obtaining written authorization from the individual. This scenario assumes State B’s law does not require authorization from the individual for disclosure of reproductive health care EHI for treatment purposes. In this scenario, an actor subject to the laws of both State A and State B can, consistent with the Privacy Exception (see 45 CFR 171.202(b)(3)), adopt uniform privacy policies and procedures that result in the actor disclosing EHI only when the individual has provided written authorization for a specific disclosure (consistent with the more privacy-protective requirements of State A’s law) of EHI about them for treatment purposes across the actor’s operations in both State A and State B. If the actor’s policies, procedures, and actions are consistent with the requirements of the Precondition Not Satisfied sub-exception (45 CFR 171.202(b)), the actor’s practices would not be considered information blocking – even though the actor’s uniform privacy policies and procedures may deny or delay access, exchange, or use of EHI in State B that (under laws in force in State B) would not require specific written authorization.

In a second, similar scenario, State A’s law sets more privacy protective or more “stringent”  requirements (“preconditions”) than both State B’s law and the HIPAA Privacy Rule for disclosures of EHI^[1] for particular purposes (such as disclosing information related to reproductive health care for law enforcement purposes^[2]). An actor operating in States A and B can meet the requirements of the Precondition Not Satisfied sub-exception (45 CFR 171.202(b)(1) through (3)) in order to have confidence that disclosing EHI only when the disclosure is consistent with the most privacy protective (most restrictive or most “stringent”) preconditions (in this example, State A’s) across all their operations in both State A and State B would not be considered information blocking.

^[1] “EHI” as defined in 45 CFR 171.102 is a subset of protected health information (PHI). See 45 CFR 160.103 (definition of “protected health information”). For more information on the HIPAA Privacy Rule and its conditions for disclosures of protected health information (PHI), please see resources of the Office for Civil Rights at HHS.gov/HIPAA.

^[2] For example, see “HIPAA Privacy Rule and Disclosures of Information Relating to Reproductive Health Care,” which discusses the permissibility of disclosures for law enforcement purposes under the HIPAA Privacy Rule.